September 30, 1999

U.S. Department of Labor (S-2315) DOL/OSHA
Attn: Mr. Charles Jeffress, Assistant Secretary of Labor
Occupational Safety and Health Administration (S-2315)
200 Constitution Ave., NW
Washington, DC 20210


Assistant Secretary Jeffress:

The purpose of this letter is to submit technical comments from the American Society of Safety Engineers (ASSE) addressing the 7/2/99 OSHA proposed changes for federally funded on-site safety and health consultations.

Proposed Rule Insights
The intent of ASSE is not to speak either for or against the proposal, but rather to make comments based upon our member views, existing data, and anecdotal information. Based upon this collective insight, we submit the following:

The ASSE review concluded that the proposed rule would probably discourage many, or most, employers from using federally-funded safety and health consultation programs. Also, ASSE members are puzzled with OSHA's overall philosophy toward consultation services. For example, the OSHA FY 2000 budget requested additional funding to hire sixty-seven (67) employees to assist with consultation, but the proposed rule would almost certainly discourage their use. The funding request and the proposed rule do not appear to be consistent in regard to federally-funded consultation. A long-term result could be increased resources for such programs, but decreased numbers of requests for consultation. Finally, the proposed rule could also increase litigation and enforcement actions arising from such consultations.

A key concern raised by ASSE is if the tenets of the rule could eventually be used to address private sector safety and health consultations. The position of ASSE is if such requirements were forced on the private sector, it would virtually wipe out any and all desire by employers to utilize proactive private sector safety and health consultations as a tool to enhance occupational safety and health. The end result would almost surely be increased numbers of injuries, illnesses, and fatalities.

OSHA also requested feedback addressing what types of trade secret or other confidential information are typically included in a consultant's report. ASSE members pointed out that many consultations are requested because an employer has brought in a new process/procedure or is looking at a new type of product or application. We do not have specific data, however, the ASSE Consultants Division suggested that many consultations address such situations. The anecdotal evidence would indicate that trade secrets and confidential information would play a significant role in many reports.

OSHA additionally asked for comments on whether employers would be less likely to request federally-funded consultation services if participation in this program is not confidential. ASSE members commented that data is not available on how many/when the names of clients are publicly disclosed. However, public disclosure of a client's name by a private sector consultant, without the client's approval, is considered to be an unethical act. In regard to the confidentiality of the consultants report ASSE has taken the following position in addressing similar issues:

ASSE supports permitting employers to keep internal company audits, reviews, documents, and personal records confidential under most circumstances. This approach will encourage employers to take proactive measures to keep their workplaces safe and healthful.

The basic view is if consultants reports are not kept confidential, most employers would be very reticent to initiate a federally-funded consultation. In addition, it was suggested that clarifying language needs to be included in the rule to address [1908](g)[2]. The ASSE is uncomfortable with the language: and, upon request, to OSHA. The view is that there needs to be specific language indicating what this means, how it addresses current case law, and how it could potentially impact private sector consultations. For example, would the employer have to furnish the report to an OSHA Compliance Officer when he/she entered the facility, before conducting an inspection, and a request is made. If the consultation report would have to be made available in this manner we would see this as being an overriding reason for an employer to not utilize consultation services. ASSE has received two (2) reports of an OSHA Compliance Officer requesting to see copies of any existing consultant reports, before conducting an inspection. As a balance to this difficult issue, we suggest that OSHA consider an approach similar to that offered in the SAFEAct, where a decision addressing the release of the consultants report would be made by an Administrative Law Judge after a request by OSHA.

Removal of an organization from the general inspection schedule is probably not enough motivation for most small employers to use a public sector consultation service. It was also pointed out that OSHA is proposing a concept similar to that utilized in the SAFEAct. However, the SAFEAct has guidelines addressing professionalism and competence for safety and health consultants. We point out that the proposed rule has absolutely no guidance addressing the qualifications required for consultants, either as employees of the agency or on contract, to be conducting a safety and health consultation. We consider the OSHA approach to the issue of professionalism in addressing this specific issue to be poor public policy. ASSE suggests that the Agency require either accredited certification, appropriate licensing, extensive experience in specific industries, or a combination of experience and education for those consultants who will be performing these safety and health consultations.

The ASSE position is not to speak for or against the proposal, but instead offer insights on what the impact of the rule on safety and health could be. The overall consensus is that the proposed rule would probably significantly decrease the number of requests for consultation. The intent of the proposed rule also appears to be inconsistent with the Agency's direction on consultation. The overriding consensus of our members is also that the tenets of the proposed rule should not be used in the future to impact the private sector practice of consultants since such requirements would destroy the motivation for employers to pursue safety and health consultations.

We thank you for your attention to this matter, and if you should have any questions or concerns please feel free to contact the Society.

Sincerely Yours,
Frank H. Perry, PE, CSP
Society President, 1999-2000

Copy To:        ASSE Board of Directors
                        ASSE Council on Professional Affairs
                        ASSE Governmental Affairs Committee
                        ASSE Contact List
                        OSHA Docket Office, Docket #C0-5, Room #N-2625



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